How to Get VA Disability Benefits for TBI

Thanks in no small part to the recent revelations concerning veterans care at Walter Reed Army Medical Center, the Department of Veterans Affairs has received overwhelming attention and criticism from both politicians and news organizations. In fact, it has become a cause celeb for the news media and politicians to talk about veterans issues. One issue receiving a great deal of that attention is traumatic brain injury (TBI). Referred to by the VA and others as the signature wound of the conflicts in Iraq and Afghanistan, TBI has become so popular that it is difficult to turn on any TV news channel, local or national, and not see some reference to the issue. Unfortunately, these stories are typically short on facts and long on hyperbole.

Recent political action on TBI consisted initially of President Bush forming The President’s Commission on Care for America’s Returning Wounded Warriors on March 6, 2007, commonly referred to as the Dole-Shalala Commission, chaired by Senator Bob Dole and former Health and Human Services Secretary Donna Shalala. The nine-member commission’s July, 2007 report, “Serve, Support, Simply: Report of the President’s Commission on Care for America’s Returning Wounded Warriors,” recommended, among other things, more aggressive prevention and improved treatment of TBI and a complete restructuring of the disability determination and compensatory systems.

Congressional response to the report came in the form of the 2008 Defense Authorization Act which was signed into law by President Bush on January 28, 2008. The TBI provisions incorporate many of the recommendations of the Dole-Shalala Commission. Relevant TBI provisions are too extensive to list here but include Sections 1631, 1618, 1661, 1702, 1703, 1704, 1705. Section 1664 is particularly noteworthy in that it requires the Secretary of Defense and the Secretary of Veterans Affairs to jointly submit a report describing the changes undertaken within the Department of Defense and the Department of Veterans Affairs to ensure that traumatic brain injury victims receive a medical designation concomitant with their injury, rather than a medical designation that assigns a generic classification (such as “organic psychiatric disorder”).

In response to this media and political pressure, and for other known and speculated reasons, the VA has taken preemptive measures of its own, and has proposed changes to the ratings schedules an attempt to more correctly assess the various types and levels of TBI dysfunction. These proposed changes will be discussed in detail further down in this post.

In light of the growing TBI problem, awareness of the issue, and media and political attention, the goal of this presentation is to provide veterans advocates with a background about TBI including its definition, causes, and symptoms, followed by a discussion of the long term symptoms and disabilities from TBI. This information will be followed by a discussion about the current rating schedules and diagnostic codes, and the VA’s proposed changes. Lastly, a discussion on practice tips on proving TBI, and the resulting symptoms and disabilities.

Before embarking on the discussion of TBI, it is appropriate to first introduce the organization that is currently at the center of the TBI discussion with respect to veterans. The Defense and Veterans Brain Injury Center (DVBIC) was established in 1992 as the Defense and Veterans Head Injury Program (DVHIP), but is now known and the Defense and Veterans Brain Injury Center (DVBIC). The organization is the result of collaboration between the Department of Defense (DOD), Department of Veterans Affairs (DVA) health care system, and a civilian partner with funding coming from the DOD. The DVBIC’s mission is to serve active duty military and their dependants and veterans with TBI through state-of-the-art medical care, innovative clinical research initiatives, and educational programs. It is headquartered at Walter Reed Army Medical Center in Washington, DC, and includes seven military and VA sites and one civilian treatment cite. Additional information on the DVBIC can be found at its website at www.dvbic.org.

TBI: WHAT CAUSES IT?

According to the DVIBC, blasts from improvised explosive devices (IED’s), rocket propelled grenades, mortars, etc., are the leading cause of TBI for active duty military personnel in war zones. The statistics are startling:

• Approximately 20% of all combat-related military casualties have sustained a brain injury (ARNEWS (Army News Service), Spc. Chuck Wagner, Nov. 24, 2003, “Brain Injuries High Among Iraq Casualties”).
• Nearly 30% of all combat-related injuries seen at Walter Reed Army Medical Center from 2003 to 2005 included brain injury. (Defense and Veterans Brain Injury Center)
• More than 50% of all combat injuries are blast injuries occurring in Iraq and Afghanistan (DVBIC website on blast injury, citing Coupland & Meddings, 1999.)
• From 2003 to 2005, the Defense and Veterans Brain Injury Center at Walter Reed screened 862 injured soldiers who had returned from Iraq or Afghanistan and were deemed as being at risk for brain injury (Defense and Veterans Brain Injury Center), and of these, 51% of these high-risk soldiers were found to have a brain injury. (DVBIC website on blast injury).

In the large majority of these blasts, soldiers were wearing some form of head protection so why are there so many cases of TBI? The problem may lie in the head protection itself. The army and marines’ standard issue Kevlar helmet, the Personnel Armor System, Ground Troops (PASGT), was originally fielded in the 1980’s and is still in use today. The military claims that the PASGT has been very successful in reducing the frequency and severity of head injuries.

Although certainly an improvement on the M1 helmet, affectionately referred to as the “steel pot”, that was fielded in 1941 and continued in use through the Vietnam War, the standard issue PASGT Kevlar helmet provided significantly improved protection from foreign objects such as shrapnel and bullets, but it did not fully address the damage to the brain from concussive vibration from various types of blasts. The explanation for this lack of protection from concussive events is that the brain is not properly stabilized inside the helmet. The PASGT is suspended on the head by only an interior headband. It does not have a padded interior suspension, and only has a two-point chinstrap. It weighs between 3.1 pounds (size XS) to 4.2 pounds (size XL). The weight, lack of padding, and lack of stability allows the head to be shaken violently during a concussive event, in much the same manner as shaken baby syndrome. The result is that the brain is slammed up against the skull from side to side resulting in trauma to the brain.

The army is currently in the process of replacing the PASGT with the Advanced Combat Helmet (ACH). Considered an improvement on the PASGT when it comes to protecting the head from TBI, the ACH comes with a padded interior suspension and a four-point chinstrap standard.

TBI: WHAT IS IT?

Inconsistency in definition and classification of TBI, along with discrepancies in data collection, has made the epidemiology of TBI difficult to describe accurately. In data collection for TBI, many patients with mild TBI may not present to the hospital, and the ones who do present may be discharged at the emergency department (ED) without adequate documentation. Differences in diagnostic tools may also affect severity classifications as defined earlier. In the past, use of roentgenograms to help diagnose skull fractures after head injury did not show much of any concurrent intracranial lesions. These lesions were difficult to diagnose until the advent of CT scan. Other confounding variables in the epidemiology of TBI exist. Another variable is the difference in findings of diagnostic imaging at different time intervals (e.g., CT scan in an early epidural hematoma may be normal. but later may show evidence of pathology if repeated). Perhaps most problematic is the use of different definitions that may not clearly define the type of injury and makes the epidemiology of TBI difficult to describe.

Definition of TBI

The DVIBC defines TBI generally as “a blow or jolt to the head or a penetrating head injury that disrupts the function of the brain” but, not surprisingly, immediately goes on to limit the definition by adding that “Not all blows or jolts to the head result in a TBI” and that “the severity…may range from ‘mild’ – a brief change in mental status or consciousness – to ‘severe’, an extended period of unconsciousness or amnesia after the injury.” In comparison, the Brain Injury Association of America (BIAA), a national leader on brain injury issues, defines TBI broadly as:

An insult to the brain, not of a degenerative or congenital nature but caused by an external physical force, that may produce a diminished or altered state of consciousness, which results in an impairment of cognitive abilities or physical functioning. These impairments may be either temporary or permanent and cause partial or total functional disability or psychosocial maladjustment.

It is important to note that these references to mild, moderate, and severe are references to the traumatic incident itself and not necessarily the long term symptoms and consequences. This has created a great deal of confusion on the issue as acknowledged by the VA, and as will be discussed in further detail later in these materials.

MILD TBI (MTBI)

According to the Clinical Practice Guidelines and Recommendations from the DVBIC, in the military setting mild TBI (MTBI) is defined as an injury to the brain resulting from an external force and/or acceleration/deceleration mechanism from an even such as a blast, fall, direct impact, or motor vehicle accident which causes an alteration in mental status. One widely accepted definition of MTBI was developed by the Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine (ACRM) which defines an MTBI as a traumatically induced physiological disruption of brain function, as manifested by a least one of the following:

1. 1. any period of loss of consciousness;
2. 2. any loss of memory for events immediately before or after the accident;
3. 3. any alteration in mental state at the time of the accident (e.g., feeling dazed, disoriented, or confused); and
4. 4. focal neurological deficit(s) that may or may not be transient;

But where the severity of the injury does not exceed the following:

• posttraumatic amnesia (PTA) not greater than 24 hours.
• after 30 minutes, an initial Glasgow Coma Scale (GCS) of 13-15; and
• loss of consciousness of approximately 30 minutes or less;

The Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine defines mild head injury as “a traumatically induced physiologic disruption of brain function, as manifested by one of the following:

• Any period of loss of consciousness (LOC),
• Any loss of memory for events immediately before or after the accident,
• Any alteration in mental state at the time of the accident,
• Focal neurologic deficits, which may or may not be transient.

The other criteria for defining mild TBI include the following:

• Loss of consciousness of approximately 30 minutes or less
• After 30 minutes, an initial Glasgow Coma Scale (GCS) of 13-15
• No abnormalities on CT scan
• No operative lesions
• Length of hospital stay less than 48 hours
• Posttraumatic amnesia (PTA) no greater than 24 hours

The Glasgow Coma Scale (GCS) defines severity of TBI within 48 hours of injury. The severity of TBI according to the GCS score as follows: severe TBI = 1-8; Moderate TBI = 9-12; and Mild TBI = 13-15. The test includes the following categories and corresponding symptoms and score:

Eye opening

• Spontaneous = 4
• To speech = 3
• To painful stimulation = 2
• No response = 1

Motor response

• Follows commands = 6
• Makes localizing movements to pain = 5
• Makes withdrawal movements to pain = 4
• Flexor (decorticate) posturing to pain = 3
• Extensor (decerebrate) posturing to pain = 2
• No response = 1

Verbal response

• Oriented to person, place, and date = 5
• Converses but is disoriented = 4
• Says inappropriate words = 3
• Says incomprehensible sounds = 2
• No response = 1

Symptoms of TBI

According to the DVIBC, symptoms of MTBI or concussion include:

• Headaches
• Dizziness
• Excessive fatigue (tiredness)
• Concentration problems
• Forgetting things (memory problems)
• Irritability
• Sleep problems
• Balance problems
• Ringing in the ears
• Vision change

The DVBIC’s recognized symptoms of MTBI include:

• Nausea
• Vomiting
• Dizziness/balance problems
• Fatigue (tiredness)
• Concentration problems
• Forgetting things (memory problems)
• Irritability
• Insomnia/Sleep disturbances
• Drowsiness
• Sensitivity to light/noise
• Ringing in the ears
• Vision change

According to the American Congress of Rehabilitation Medicine (1993), criteria for a mild TBI (MTBI) are that at least one of the following must have occurred as a result of head trauma:

• loss of consciousness lasting less than 30 minutes
• Glasgow Coma Scale (GCS) score of 13 or more
• posttraumatic amnesia lasting less than 24 hours
• mental alteration at the time of injury
• any transient or persistent focal neurological signs.

Although a distinguishing characteristic of MTBI is that these injuries are considered “mild”, significant emotional and behavioral difficulties can be evident a year after injury. These difficulties include increased mistrust, anger, impulsivity, poor self-monitoring of behaviors, sensory-perceptual distortions, anger management difficulties, and antisocial behaviors. [1]

Neuropsychological sequelae to MTBI include impairment in cognitive abilities, attention/working memory, processing speed, organizational functions, language, constructional praxis, executive function, and general intellectual functioning. A history of MTBI has been associated with the onset of various psychological disorders, most often depression or anxiety. [2]

Busch and Alpern (1998) reviewed research on MTBI and concluded that the prevalence of depression was at least 35% following MTBI. Based upon data in studies reviewed, these authors suggested that MTBI was a triggering event for pathophysiological changes and depression in a vulnerable group. Given the behavioral and cognitive changes following MTBI, it is important to determine the prevalence and, with more effort, the etiology of these behavioral changes following injury. The available data suggests that MTBI has long-term economic and emotional consequences, both for the affected individual and her or his family. [3]

It is believed that most persons who sustain MTBIs do not seek medical care when there is no loss of consciousness or only a brief period of loss of consciousness, or disorientation following head injury. This results in the MTBI going unrecognized, with long-term consequences that may be very disabling. For people with psychiatric disorders, the sequelae of MTBI may be especially important.

There is considerable literature reporting the strong association between MTBI and the incidence of psychiatric disorders. [4] It is unknown whether MTBI causes psychiatric illnesses to manifest themselves, or whether there is an intensification of symptom severity in vulnerable individuals when MTBI occurs. Therefore, it is essential that additional information about the interconnectedness of MTBI and psychiatric illness be secured. A recent study entitled Mild Traumatic Brain Injury in U.S. Soldiers Returning from Iraq, published this past January in The New England Journal of Medicine concluded that nearly 44% those diagnosed with a TBI and 27% of those diagnosed with MTBI also met the criteria for PTSD.

CURRENT VA RATING SCHEDULES FOR TBI

In order to comprehend the depth of the problem with the current system of rating service-connected disabilities, it is useful to understand that the system is more than 45 years old. At the time of its creation, the medical and scientific community’s understanding of, and ability to test for, the symptoms from TBI, particularly subjective symptoms from mild TBI, was in its infancy. Additionally, by the VA’s own admission, this system, particularly as it related to subjective symptoms, reflected the prevalent view at the time that these symptoms might be due to hysteria or malingering.

As a result of the growing number of service-connected disability claims for TBI and that lack of guidance, on August 31, 2007, the VBA issued Training Letter 07-05 (Revised) that provided updated guidance for evaluating TBI claims. In a nutshell, it provides that for symptoms of moderate or severe, evaluate on the specific diagnostic code related to that symptom. The list of symptoms include:

• Cognitive impairment
• Anxiety, depression, PTSD, and other mental disorders
• Motor and sensory dysfunction
• Visual impairment
• Loss of sense of smell and taste
• Headaches
• Seizures
• Gait and balance problems
• Speech and other language communication difficulties
• Neurogenic bladder
• Neurogenic bowel
• Cranial nerve dysfunctions
• Autonomic nerve dysfunctions
• Endocrine dysfunctions
• Skull defects
• Normal pressure hydrocephalus
• State of altered consciousness

With respect to the subjective cluster of symptoms of mild TBI, the guidance provides that under diagnostic code 8045 (Brain disease due to trauma), purely subjective complaints including:

• Headaches
• Dizziness or vertigo
• Fatigue
• Malaise
• Sleep disturbance
• Slight memory impairment
• Difficulty concentrating
• Delayed reaction time
• Behavioral changes (irritability, restlessness, apathy, inappropriate social behavior, aggression, impulsivity)
• Emotional changes (mood swings, anxiety, depression that don’t meet DSM-IV criteria)
• Hypersensitivity to sound
• Hypersensitivity to light
• Blurred vision
• Double vision
• Decreased sense of smell and taste
• Tinnitus

will be rated at 10 percent, and no more, under diagnostic code 9304 with no additional rating under diagnostic code 9304 (Dementia due to trauma). To make matters worse, this 10 percent rating is not combined with any other rating for a disability due to brain trauma, such as cognitive impairment, and ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.

As you can see from the two lists, many of these symptoms for mild TBI overlap with the symptoms from the moderate to severe list. This can partly be explained by understanding that some of these same symptoms may have objective symptoms, or may only have subjective symptoms. Guidance for the practitioner on these issues will be discussed later in this post.

PROPOSED CHANGES TO RATINGS SCHEDULES

On January 3, 2008, the Department of Veterans Affairs proposed changes to the rating schedules with respect to residuals of TBI. The proposed changes were intended to revise “that portion of the Schedule that addresses neurological conditions and convulsive disorders, in order to provide detailed and updated criteria for evaluating residuals of traumatic brain injury (TBI).”

The proposal begins with changing the title of diagnostic code 8045 from “Brain diseases due to trauma” to “Residuals of traumatic brain injury (TBI)” In its initial summary of the proposed changes the VA stated:

We propose to provide guidance for the evaluation of the most common, but not all possible, residuals of TBI. These residuals fall into three main areas of dysfunction: cognitive, emotional/behavioral, and physical. In addition, a cluster of largely subjective symptoms (symptoms cluster) falling into these categories may develop following TBI.

This proposed rule provides several sets of guidelines and criteria for the evaluation of TBI residuals because of the breadth of the possible effects. These include guidance on evaluating physical (neurologic) residuals, criteria for evaluating cognitive impairment, criteria for evaluating the symptoms cluster that sometimes follows TBI (sometimes referred to as post-concussion syndrome (PCA)), and guidance on evaluating emotional/behavioral dysfunction.

Evaluating Physical Dysfunction

The VA proposes to provide a list of the most common physical (neurological) problems from TBI including:

• motor and sensory dysfunction, including pain, of the extremities and face;
• visual impairment;
• hearing loss and tinnitus;
• loss of sense of smell and taste;
• seizures;
• gait, coordination, and balance problems;
• speech and other communication difficulties, including aphasia and related disorders, and dysarthria;
• neurogenic bowel;
• cranial nerve dysfunctions;
• autonomic nerve dysfunctions;
• endocrine dysfunctions.

The VA is proposing that each of these physical condition be separately evaluated under the appropriate diagnostic code, “as long as the same signs and symptoms are not used to support more than one evaluation,” and to combine the evaluations using the combined ratings table.

Also, VA is proposing that raters be directed to special monthly compensation for loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance and being housebound.

Evaluating Emotional/Behavioral Dysfunction and Co-morbid Mental Disorders

The VA is proposing acknowledges that mental disorders are common with TBI, particularly depression (60%), anxiety, and PTSD, and that they are co-morbid (coexisting with another medical disorder). The VA is proposing to rate these co-morbid mental disorders under the existing 38 CFR 4.130 (Schedule of ratings – mental disorders). It also recognizes that some symptoms may not reach the level of a DSM-IV mental disorder, and that those would be evaluated under cognitive impairment, or the symptoms cluster, as the symptoms may warrant.

Evaluating the Symptoms Cluster/Post-Concussion Syndrome

The VA acknowledges that frequently, following TBI, a variety of subjective emotional/behavioral, cognitive, and physical and psychological symptoms manifest with no objective neurologic findings or abnormalities on routine imaging. The symptoms include:

• Headaches (migraine or tension)
• Dizziness or vertigo
• Fatigue
• Malaise
• Sleep disturbances
• Cognitive impairment
• Difficulty concentrating
• Delayed reaction time
• Behavioral changes (such as irritability, restlessness, apathy, inappropriate social behavior, aggression, impulsivity)
• Emotional changes (such as mood swings, anxiety, depression)
• Tinnitus or hypersensitivity to sound
• Hypersensitivity to light
• Blurred vision
• Double vision
• Decreased sense of smell and taste
• Difficulty hearing in noisy situations or with competing sounds in the absence of objective hearing loss

Occasionally, these symptoms become permanent, but the existing system does not provide an outlet. Currently, these purely subjective symptoms such as headaches, dizziness, insomnia, etc., are rated at only 10 percent under diagnostic code 9304 and no more, regardless of severity, unless there is multi-infarct dementia associated with brain trauma.

The VA now acknowledges that these symptoms may be more than 10 percent disabling and proposes to replace current guidance under DC 8045 with a set of criteria to evaluate the symptoms cluster with levels of 20% (3-5 symptoms), 30% (5-8 symptoms), and 40% (9 or more symptoms). However if there is a “definite diagnosis” that includes one or more symptoms, it would be separately evaluated.

The VA rationale in support of the above rating levels is that “these levels of evaluation are consistent with the range of disability that may result from these symptoms.”

NOVA has responded to this issue by informing the VA that its rationale for the above changes is without merit, and that quite to the contrary, the symptoms listed may in many instances be severe enough, and the levels of functioning low enough, to merit evaluations much higher than 40 percent. In fact, in certain instances, the severity of symptoms and limitation of functioning may justify an evaluation level of 100 percent. Additionally, objective signs and symptoms of TBI, including cognitive impairment and physical emotional/behavioral (mental disorder) impairment have potential evaluations as high as 100 percent. This gives the appearance that the proposed levels of evaluation for the symptoms cluster are not as disabling as when there are objective findings. This is all the more apparent when the symptoms are the same, such as with cognitive impairment. Finally, the current ratings system has a history of recognizing that subjective symptoms may justify an evaluation as high as 100 percent, such as with mental disorders. Based upon the above considerations, the evaluation levels of subjective symptom clusters due to TBI should rise progressively from 10, 30, 50, 70, and 100 percent based upon severity, just as they do with mental disorders.

Evaluating Cognitive Impairment

Cognitive impairment, impaired memory, concentration, attention, and executive function of the brain is typically seen in moderate to severe TBI, but may also occur in objective form in individuals with mild TBI. Additionally, some functions may be more affected than others, and may fluctuate in severity from day to day.

The VA proposes a complicated evaluation process that would fall under diagnostic code 8045 that begins with providing eleven criteria on the 11 common major effects of cognitive impairment, as follows:

• Work or school
• Memory, attention, concentration
• ADLs (activities of daily living)
• Judgment
• Supervision for safety
• Appropriate response in social situations
• Orientation
• Motor activity (with intact motor and sensory system)
• Visual-spatial function
• Other neurobehavioral effects (aggressive, impulsive, uninhibited, sleep problems, apathetic, inflexible, mood swings, lack of motivation, fatigability, impaired awareness of disability)

The VA then proposed the use of a table that provides a score from 0-4 for each symptom, with the three highest scores added together and divided by three to determine the overall score rounded to the nearest whole number. The percentage evaluations would then be as follows with the corresponding score in parentheses: 0% (less than 1); 10% (1); 40% (2), 70% (3), 100% (4).

Also, the VA proposes adding three notes, the first of which is worth discussing in detail.[5] The VA proposes that Note 1 under the cognitive impairment part of diagnostic code 8045 deal with the concerned overlap of mental disorders in which case a single evaluation under the mental disorder or cognitive impairments if the signs and symptom. Although the proposed changes provide that mental disorders may be rated separately under the mental disorder diagnostic codes, they are separately rated,
if and only if, the symptoms are diagnosed as a mental disorder, and the symptoms are “clearly separable” from the other conditions. Failure to meet the proposed requirements results in the symptoms being evaluated under the symptoms cluster or cognitive impairment part of 8045.

NOVA has pointed out to the VA that this proposed change is problematic for a variety of reasons. First, this proposal unfairly places the burden on the claimant to demonstrate that their symptoms are “clearly separable,” and is inconsistent with the Benefit of Doubt doctrine found in 38 U.S.C. 5107 that requires the benefit of doubt as to the resolution of each respective issue be given to the claimant when there is an approximate balance of positive and negative evidence. Second, the standard of “clearly separable” is an unfairly high standard for the veteran. The ultimate consequence of the unfair burden and the high standard is that many mental disorder cases will not be rated outside of diagnostic code 8045.

Second, the proposed changes include a separate analysis for each of the following categories of symptoms associated with TBI: cognitive impairment; subjective symptoms cluster (post-concussion syndrome); and emotional/behavioral (mental disorders). However, in effect, the proposed changes place the cognitive impairment and the subjective symptoms cluster, as well as many mental disorders, under one diagnostic code: 8045.

The unfair consequence to the claimant of placing the various conditions associated with TBI under one diagnostic code is that the claimant would only be entitled to the highest rating of the three, not a combined rating for all the conditions under 38 C.F.R. § 4.25. The various categories of conditions associated with TBI, including physical/neurological, post-concussion syndrome, cognitive impairment, emotional/behavioral, are separate and independently disabling conditions that merit a combined rating to effectively promote consistent evaluations consistent with the range of disability that may result from these symptoms. In order to accomplish this goal, these separate categories of conditions of TBI, if they remain under diagnostic code 8045, should be expressly permitted to be combined for purposes of a combined rating. Alternatively, they should be assigned separate diagnostic codes that expressly allow for a combined rating.

PRACTICE TIPS & STRATEGIES

Client Interview

Given the prevalence of the problem, it is prudent to make TBI a part of any initial client interview. As part of any initial interview, it is important to initially ask about any exposure to a blast or other type of concussive event. If a concussive event is established, go through the checklist of symptoms with the client to determine what, if any, current symptoms the client may be experiencing.

Review records

Review the medical records for any evidence of symptoms of, and treatment for, TBI. You may be fortunate enough, if the treatment is fairly recent, to find documentation on TBI screening.

In response to the increased frequency of TBI cases from Iraq and Afghanistan, the Veterans Health Administration arm of the DVA issued Directive 20007-13 that imposed mandatory screening on ALL OEF and OIF veterans. The value of this in the disability context is obvious. However, the screening does have a few drawbacks. First, it doesn’t screen all veterans but only those seeking treatment at a VA facility. Soldiers who don’t know that something is wrong and don’t seek treatment are not screened. This means that veterans may not link the incident with the various symptoms they are having and therefore not seek treatment. The result is that they fall through the cracks. Second, this system is mandated for VA medical treatment centers, not military Medical Treatment Centers. This is important because soldiers that remain on active duty are expressly not required to be screened under this mandate. Once again, another group falls through the cracks.

In an effort to prevent soldiers from falling through the cracks, the Army recently instituted mandatory training for TBI for all soldiers. This training includes video and written material on TBI producing events, short and long term symptoms including mild TBI, and treatment options including screening for TBI. This training provides a much greater awareness to veterans of TBI. It also promotes active and aggressive treatment and assistance from fellow soldiers and leadership, in recognizing symptoms of TBI in others. Hopefully, this will result in more thorough documentation of the symptoms.

The DVBIC has a TBI Screening Tool, also called The Brief Traumatic Brain Injury Screen (BTBIS), that was validated in a study conducted by active duty service members who served in Iraq/Afghanistan from January 2004 – January 2005. The screening tool consists of three questions about an incident (blast, etc.), symptoms of TBI at time of incident (loss of consciousness, dazed, headache, etc.), and current symptoms (headaches, dizziness, etc.).

The DVBIC also provides a form for medical treatment providers, including the MACE clinical form and the Clinical Practice Guideline and Recommendations. The forms are all available on the DVIBC website at http://dvbic.dcoe.mil/.

Making the claim(s)

If a claim has not already been made, consider filing a claim for “residuals of traumatic brain injury, in addition to the various specific symptoms to the extent that they may be separately rated. Given the current state of flux in the rating schedules with respect to TBI, making the claim this way preserves all avenues for the claimant. Assuming that change to the regulations is coming in some form or another similar to the proposed changes, this will help get the claimant into the system for treatment, if necessary, and for evaluation of the conditions that will speed up the process later when the final version of the changes go into effect.

Treatment

Particularly with MTBI, there may be little or no treatment for the various symptoms. The VA does have what it refers to as polytreatment centers within various VA medical centers that are designed to treat TBI cases. However, there is still a major disconnect in identification of veterans who are suffering from MTBI. This is where we can help! It is important to assist the claimant in obtaining the necessary treatment by insisting that they be examined, either at the local VA medical center, if they qualify, or privately, if they are able and/or by requesting a C&P examination, if they are not able to obtain treatment to address the issues. In doing so, keep in mind the three categories of symptoms including physical/neurological, cognitive, and emotional/mental.

Legal Assistance for Veterans with TBI

If you were exposed to a blast on active duty and your doctors are concerned you may now be showing signs of a TBI, please contact the experienced advocates at Veterans Help Group to evaluate any possible claims that could be made. We offer a free case evaluation and are happy to answer your questions.

[1] Hanks, Temkin, Machammer, & Dikmen, 1999.

[2] Bowen, Chamberlain, Tennant, Neumann, & Conner, 1998; Deb, Lyons, Koutzoukis, Ali, & McCarthy, 1999; Holtzer, Burright, Lynn, & Donovick, 2000; Jorge et al., 2004; Jorge, Robinson, & Starkstein, 1993; Mooney & Speed, 2001; Pedoroff et al., 1992.

[3] Max, MacKenzie, & Rice, 1991; Wallace Bogner, 2000.

[4] Deb et al., 1999; Mooney & Speed, 2001; Price, 2004; Silver, Kramer, Greenwald, & Weissman, 2001.

[5] The second proposed note directs raters that cognitive impairment cannot be evaluated under both the cognitive impairment criteria and as part of the subjective clusters. The third proposed note directs raters to evaluate under the set of criteria that is most in accord with reported residuals regardless of classification of the TBI as mild, moderate or severe and the severity determination in proximity to the time of injury.